You are on page 1of 6

THE FUNDAMENTALS PRINCIPLES OF PUBLIC ADMINISTRATION

Octavia-Maria CILIBIU**

**Lecturer, PhD, Department of Juridical Sciences, Faculty of International Relations, Law and
Administrative Sciences "Constantin Brncusi" University of Tg-Jiu

Abstract: The basic principles of a modern public administration are: the principle of legality,
opportunity principle, the principle of sound administration, proportionality, the principle of subsidiary,
the principle ofeligibility in public administration principle of consulting the citizens in solving
problems of interest and transparency in public decision.

Key words: public administration, legality, opportunity, subsidiary, proportionality, transparency in the
decision.

The work of a modern public administration is governed by a set of principles, some of which are legally
recognized. Thus, we will further treat the basic principles of a modern public administration, such as
the principle of legality, the principle of opportunity,
the principle of sound administration,the principle ofproportionality, the principl of subsidiarity,
the principle of eligibility in public administration, the principleof consulting the citizens in solving
issues of particular interest, the principle of decisional transparency in public administration.

The principle of legality

The principle of legality is expressly provided in art. 1, paragraph 5 of the Constitution, which states: "In
Romania, the compliance with the Constitution, its supremacy and the laws shall be mandatory".

Legality is the fundamental principle of government and its work, materialized or not in administrative
acts. Under this principle, the public administration must be based on law.

Legality "is synonymous with legal regularity and assumes that adminstration action to take into account
two elements: the obligation to comply with regulations and the obligation of initiative required to
ensure compliance with the law"19.

Public administration activity takes place on the law and in compliance with the law, aiming at the
organization and its actual execution.

.Having discretionary powers,such as the power to choose among several courses of action and
decision,it is necessary for the administration, in exercising its powers, to circumscribe its work within
the limits of the law. Administration can only do what the law allows. Whether we are in the
presence of benefit activity, whether we are in the presence of disposition activity, the
activity of public administration must be based on law or otherwise administration can act only on the
basis and enforcement of a law.

The legal principle is the basis of the legal control of Public administration , including the
possibility ofdiscontent to address to the court to check on the legality of administrative acts.
The principle of opportunity

The work of organizing the execution and enforcement of the law translates into concrete
administrative acts and material facts. "Opportunity is a condition of validity, not legality"20.

Under discretionary power, the public administrative authorities have initiative and the ability to assess
situations in which they issue or adopt administrative acts and to assess their
appropriateness of drawing and issue. Most administrative acts are issued
by public administration bodies using their right to judge the appropriateness of such acts.
"Appreciation rights limits are determined by the application of legal rules which are issued
administrative acts"21

The principle of opportunity "stresses the prerogative conferred to public administration, a prerogative
under which this is entitled and obliged to assess when issuing an administrative document the
compliance between the rule of law and the facts, assessment the Public adminstration makes from a
single criterion: the interests of the community it represents"22.

The principle of sound administration

This principle follows from art. II - 101 of the Treaty establishing a Constitution for Europe,the article
establishes the right to sound administration. Everyone23 has the right to be heard before making a
decision that could adversely affect him; obligation of the administration to give reasons. The right to
sound administration entails the obligation of the administration to analyse the citizens.

Public authorities, public institutions and other units provided by law are obliged to work in the general
interest with a high degree of professionalism in terms of efficiency, effectiveness and
economy of resource use.

Citizens must have access to a transparent and flexible administration, as


the public administrationmanages the interests of citizens. In a
state of law, public administration authorities are formed as a result of organizing and conducting free
and fair elections in which the people holding political power, expresses his political choices by
universal, equal, direct, secret and freely expressed vote. In these circumstances, it is natural that the
authorities constituted by elected representatives of the people, to be always in the service ofcitizens,
satisfying the requirements of social life through the proper application of laws or by the
organization of their practical application, in other words to manage their interests in order to achieve
the common good.

"The original institutional construction of the European Union legalises the ideal of sound governance as
the obligation of Member States and establishes a supranational mechanism of sound governance at
European level, as demonstrated by granting European citizens the right to sound administration"24.

The principle of proportionality


For the general interest, government was given the right to impose its own manifestation of will.
Promoting public interest it can achieve and often made even in violation of private interest. In such a
state of law, the principle of proportionality imposes as a necessity and obliges imperative to balance.
This especially in emergencies, disasters, epizootics etc. when public administration should be limited to
those measures and within those limits, necessary and sufficient to remove the factors that have
generated them, otherwise it raises the question of the illegality of the
actions of public administration (abuse of law or abuse ofpower)25.

The principle of permanence and continuity

The work of organizing the execution and enforcement of the law through concrete actions with
disposal nature or actions with the service nature must be carried out continuously. "It is unacceptable
to think that there are times when the law can not be applied in the territory in which it should regulate
social relations.The unenforceability, for any reason (including organizational),of the Act creates social
disorder ultimately leading to anarchy and destruction in the state organized entity"26.

As pointed E.D Tarang "in human society there are certain needs in the general interest, namely the
need for peace and security, healthcare needs, the need for culture etc, these needs if they are not
satisfied, all social life would suffer and lose balance. They must be satisfied regularly and continuously.
The state must intervene and organize these activities to ensure peace and social harmony"27.

The principle of subsidiarity

This principle is defined by the European Charter of Local Autonomy, adopted in Strasbourg by the
Council ofEurope in 1985 and ratified by Romania by Law no. 199/1997, art. 4 entitled "Scope of local
autonomy": "the exercise of public responsibilities should generally return preferably to those bodies
that are appropriated to citizens. Allocation of responsibility to another authority should take into
account the extent and nature of the task and requirements of efficiency and economy".

According to main Law of decentralization - Law no. 95/2006 subsidiarity principle lies in
exercise of powers by local administratione administrative level28 closest to the citizen who has the
necessary administrative capacity. The principle aims to bring citizens closer to the decision, raising the
issue of distribution, transfer of competencies to local communities on the path of decentralization.

Elective principle in public administration

According to this principle much of the authorities of public administration are elected by citizens.

Regarding the central public administration, the President of Romania, according to art. 81, para 1 of the
Constitution, as revised, is elected by universal, equal, direct, secret and freely expressed vote.

Regarding local administration, according to art. 121, paragraph 1, the


authorities of public administration, which establishes local autonomy in communes and towns ,are the
local Councils and Mayors elected, in accordance with the law. According to art. 122, The County Council
is the public administration authority coordinating the activity of commune and town in
pursuit of public services of county interest. The county council is elected and operates according to the
law. Local councils and mayors as well as county councils and their presidents, local government
authorities are elected by universal, equal, direct, secret and freely expressed vote.

The principle of consultation of citizens in solving problems of special interest

Consulting citizens in solving issues of particular interest is by referendum or by any other form of direct
citizen participation in public affairs.

The referendum is the most widely used tool for direct democracy and is "clearly the most efficient and
clear way of consulting the popular will"29. They may be cited in the same direction the reunion and
popular initiative. Popular initiative is "a procedure by which a state population gives momentum
(initiates) decision making"30. This procedure can be completed with the intervention of the people
(referendum) or a decision oflegal authorities designated by it.

Romanian Constitution regulates two forms of popular initiative: the constitutional and legal initiative.

The referendum is "the democratic process when people show directly and independently, by popular
vote, their sovereignty over a precise question of general interest, being a real factor of political and
social balance , with the only condition to be regulated and used wisely. However, it is also an
instrument of control over the government and even a reform"31.

In doctrine, the referendum is defined as a procedure of democratic consultation of the population.


Consultation can be initiated by state authorities (eg referendum on impeaching the
President of Romania is the responsibility of the Government) or even the population itself (for example,
a referendum to dissolve the city council is organized following a request in this respect to the
prefect of the 25% of voters voting on the electoral register of administrative-territorial unit);
Consultation can have a purely informative nature for a clearer expression of the general will, or the
nature of a decision, to require the authorities who have requested it. Because during the referendum,
most often, people appear as arbitrary for extremely important issues, or extremely general it is
considered by excellence as a direct exercise of state power "32.

Law no. 3/2000 on the organization and conduct of the referendum33, as amended and
supplemented34 regulates the national referendum - held on issues of national interest and local
referendum - held on issues of particular interest in the territorial administrative units35.

As regards central public administration authorities, citizens are consulted on impeaching the
President ofRomania - art. 95, para 3 of the revised Constitution - it is a national referendum. The
national referendum can be held on other issues of national interest, for example, organizing local,
territory public administration, as well as general rules on local autonomy - art. 12, paragraph 1, letter B,
b of Law no. 3/2000.

As regards local referendum, local administration law no. 215/2001 establishes


the principle of consultation of citizens in solving the problems of particular interest. Thus, according to
art. 3 paragraphs 3 residents are consulted by referendum or by any other form of direct citizen
participation in public affairs, under the law.

Issues subject to referendum shall be established by the local or county councils, where appropriate, a
proposal from the mayor or the county council president or one third of the local councilors, county
councilors respectively - art. 14, paragraph 1 of Law no. 3/2000.

The principle of transparency in public administration decision-making

The principle of transparency in public decision relates to the transparency of decision making and
assumes full access of the citizens and other stakeholders information on making and implementing the
decisions ofpublic administration authorities, including the process of revenue collection and
implementation accounts of local authorities at all levels36.

This principle finds its legal consecration in Law no. 52/2003 on decisional transparency
in publicadministration.

This principle aims at increasing the accountability of public administration towards the citizen, as
beneficiary of administrative decision and fostering active participation of citizens in making
administrative decisions and in the drafting of the legislation.

To ensure transparency of decisionmaking within the central and local public administration authorities,
elected or appointed, and other public institutions that use public financial resources, the relationships
established between them with the citizens and their legally established associations they must comply
with the following rules:

a) prior notification, ex officio, of the people on matters of public interest to be debated by central and
local public administration authorities and on draft legislation;

b) consulting citizens and legally constituted associations, at the initiative of the public authorities in the
process of drafting legislation;

c) active participation of citizens in administrative decisions and in the process of drafting legislation
with the following rules:

1. meetings of public authorities and institutions covered by the Law on decisional transparency
in publicadministration are made public, under the law;

2. The debates will be recorded and made public;

3. The minutes of these meetings will be recorded, archived and made public under the law.

Along with these principles, the public administration is also based on other equally
important principlessuch as:

- the principle of equality before the administration,


- the principle of Administration subordination to the general interest,

- The principle of civil society participation in public administration decision making, etc.

https://search.proquest.com/pqrl/docview/1779456279/1C425C27B7124B9APQ/4?accountid=37714